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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
BAA plc v. Mr. Nigel Hughes
Case No. D2001-1358
1. The Parties
The Complainant is BAA plc of 130 Wilton Road, London SW1V 1LQ, U.K., represented by Nabarro Nathanson of London, England.
The Respondent is Mr. Nigel Hughes of 47 Norfolk Square, Brighton BN1 2PA, U.K.
2. The Domain Name and Registrar
The disputed domain name is <stansted-airport.info>.
The Registrar is Schlund & Partner AG of Karlsruhe, Germany.
3. Procedural History
This is an administrative proceeding pursuant to the Uniform Domain Name Dispute Resolution Policy ("the Policy") adopted by the Internet Corporation for Assigned Names and Numbers ("ICANN") on August 26, 1999, the Rules for Uniform Domain Name Dispute Resolution Policy, approved by ICANN on October 24, 1999, ("the Rules") and the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy ("the Supplemental Rules") of the WIPO Arbitration and Mediation Center ("the Center").
The Complaint was received by the Center by email on November 14, 2001, and in hard copy on November 16, 2001. It was acknowledged on November 19, 2001. On November 20, 2001, registration details were sought from the Registrar, which replied on November 26, 2001, stating that it had received a copy of the Complaint from the Complainant; that the disputed domain name is registered with it in the name of the Respondent. The Registrar also stated that the Policy applies to the disputed domain name, the current status is "connected" and the language of the Registration Agreement is English.
On November 27, 2001, the Center satisfied itself that the Complaint complied with all formal requirements (including payment of the prescribed fee) and next day formally dispatched copies of the Complaint by post/courier (with enclosures) to the Respondent at the address as recorded with the Registrar and by email (without attachments). The Center included with that material a letter dated November 28, 2001, containing notification of the commencement of this administrative proceeding, with copies (of the Complaint without attachments) to the Complainant, the Registrar and ICANN.
The last day specified by the Center for a Response was December 18, 2001. No Response was filed and on December 19, 2001, the Center notified the parties of the Respondent’s default. On December 19, 2001, the Respondent sent an email to the Center saying:
"A reply was sent on December 4th 2001 to your headquarters in Geneve stating that I requested this to be a 1 (One) person hearing and that my defense was that BAA had failed to register the domain name during the Aflias sunrise period for trade mark holders only and that I intend to use the site for a forum of stansted users and have intention of passing of as the actual airport.
I am currently holidaying in Mauritias until January 20th 2002 and are not in a position to check paperwork.
Nigel Hughes" [sic]
The Center replied by email that day that it had not received the communication of December 4, 2001.
On January 9, 2002, the Center formally notified the parties of the appointment of Alan L. Limbury as panelist, Mr. Limbury having submitted a Statement of Acceptance and Declaration of Impartiality and Independence. That day the Center transmitted the case file to the Panel and notified the parties of the projected decision date of January 23, 2002.
The Panel is satisfied that the Complaint was filed in accordance with the requirements of the Rules and Supplemental Rules; payment was properly made; the Panel agrees with the Center’s assessment concerning the Complaint’s compliance with the formal requirements; the Center discharged its responsibility under paragraph 2(a) of the Rules to employ reasonably available means calculated to achieve actual notice to the Respondent of the Complaint; no Response was filed within the time specified in the Rules and the Panel was properly constituted.
The language of the proceedings was English.
4. Factual Background
The Complainant is the owner of seven UK airports, including the world's busiest international airport, Heathrow. It is the largest single airport operator in the world. It has management contracts or stakes in nine airports outside the UK, plus retail management contracts at two airports in the USA. It is at the heart of the world's transport network and its airports are the gateways to and from the cities and countries they serve. In July 1987, the Complainant was successfully floated on the London Stock Market with a capitalisation of Ј1,225 million.
In particular, the Complainant owns and operates London’s third international airport under and by reference to the trademark STANSTED AIRPORT. Stansted is London's third international gateway and one of the fastest growing airports in Europe. It serves around 13 million passengers a year to 81 destinations (mostly European and Mediterranean). Stansted Airport is home to many of the UK's low-cost airlines.
According to the Whois database of Afilias.info, the record of the disputed domain name, registered by the Respondent, was created on October 4, 2001.
5. Parties’ Contentions
The Complainant requests the Panel to direct that <stansted-airport.info> be transferred to the Complainant upon the following legal grounds:
The Complainant has long-established common law rights in the trademark STANSTED AIRPORT. The domain name is identical to STANSTED AIRPORT.
The Complainant is the legal and beneficial owner of the United Kingdom registered trade mark No. 2136628 "BAA STANSTED and Device", registered in Class 39 in respect of various airport services and filed on June 20, 1997 . The disputed domain name is confusingly similar to the Registered Trade Mark.
The Complainant and its predecessor British Airports Authority has owned and operated Stansted Airport under the mark since 1966. As a result, the name STANSTED AIRPORT has sufficient secondary association with the Complainant for common law rights to exist under the law of England and Wales.
The disputed domain name is also confusingly similar to the Registered Trade Mark in that the Registered Trade Mark contains the element STANSTED, which is identical to an element of the disputed domain name. This element is a substantial part of the Registered Trade Mark and is used by members of the travelling public as a reference to Stansted Airport.
Members of the travelling public and other Internauts would naturally assume that by visiting the <www.stansted-airport.info> website they would access information provided by the Complainant, as owner and operator of the airport, concerning the operation and facilities available at the airport. In seeking such information from the Complainant a user may well type <www.stansted-airport.info> into his web browser and expect to be connected with a web site operated by the Complainant and not a third party.
Such members of the travelling public and other Internauts would further expect that any information accessed from visiting the <www.stansted-airport.info> website is accurate. As such, it is in the public interest that information concerning the operation and facilities available at an airport is provided by the owner and operator of that airport and is authentic and accurate.
The Respondent has no rights or legitimate interests in the disputed domain name. The Complainant further submits that the disputed domain name is not in any other way identified with or related to a legitimate interest of the Respondent. As owner and operator of Stansted Airport the Complainant has never previously heard of the Respondent and the Complainant submits that the Respondent has no connection with Stansted Airport.
The Respondent has not been commonly known, or known at all, by the disputed domain name; he has not acquired any trade mark or service mark rights in it and is not making any legitimate, non-commercial or fair use of it.
The disputed domain name has been registered and is being used in bad faith. The visitor accessing the <www.stansted-airport.info> website on October 15 and 23, 2001, was apparently redirected automatically at that time to a web page at <www.dunka.co.uk>. Notices clearly stated:
"This web address is for sale
The Complainant submits that this is clear evidence that the Respondent registered the disputed domain name with a view to selling it to the Complainant who is the owner of the registered and unregistered rights referred to in the paragraph above, for valuable consideration in excess of the Respondent’s out-of-pocket costs directly related to the disputed domain name.
The web page accessed by going to <www.stansted-airport.info> now states:
"This Site is currently under construction.
For more information contact:-
This revised notice was posted as a result of a letter sent to the Respondent on behalf of the Complainant by its solicitors dated October 25, 2001, informing Mr. Hughes of the Complainant’s rights and requesting that the disputed domain name be transferred. Before receipt of that letter, the Respondent had not used the disputed domain name or any names corresponding to it in connection with a bona fide offering of goods or services.
In his response to the letter on October 27, 2001, Mr. Hughes states that he is "currently in the process of setting up a legitimate site as a customer [sic] at Stansted Airport". He gives no indication as to what he proposes or what sort of legitimate site he could possibly set up either as a "customer" at Stansted Airport or at all.
The Complainant submits that the circumstances clearly indicate that the Respondent initially registered the Domain Name primarily for the purpose of selling the registration to the owner of the trademark. Although Mr. Hughes subsequently claimed to be in the process of setting up a legitimate site as a customer at Stansted Airport, Mr. Hughes has not created a website for the disputed domain name.
The Respondent has formally offered to sell the disputed domain name, which indicates that the Respondent’s only motive for registering it was his intention to sell it to the Complainant. In the US case of Panavision International, L.P.-v- Dennis Toeppen, et al., 141 F. 3d 1316 (9th cir. 1998), the Court of Appeals held that the defendant’s intention to sell a domain name to the plaintiff constituted "use" of the Plaintiff’s mark.
B. The Respondent
No Response was filed.
6. Discussion and Findings
Failure to File a Response
Numerous cases under the Policy have adopted and applied the principle that a respondent’s failure to dispute the allegations of the complainant permits the inferences that the complainant’s allegations are true and that the respondent knows its website is misleading. See, for example, Hewlett-Packard Company v. Full System (Case FA 0094637); David G. Cook v. This Domain is For Sale (Case FA0094957) and Gorstew Jamaica and Unique Vacations, Inc. v. Travel Concierge (Case FA0094925).
A somewhat broader statement of principle is contained in Reuters Limited v. Global Net 2000, Inc. (WIPO Case D2000-0441):
"The Panel draws two inferences where the Respondent has failed to submit a response: (a) "the Respondent does not deny the facts which the Complainant asserts" and (b) "the Respondent does not deny the conclusions which the Complainant asserts can be drawn from those facts"."
Under paragraph 15(a) of the Rules, the Panel must decide this Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
To qualify for cancellation or transfer, a Complainant must prove each element of paragraph 4(a) of the Policy, namely:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
Identity or Confusing Similarity
Essential or virtual identity is sufficient for the purposes of the Policy: see The Stanley Works and Stanley Logistics, Inc v. Camp Creek. Co., Inc. (WIPO Case No. D2000-0113), Toyota Jidosha Kabushiki Kaisha d/b/a Toyota Motor Corporation v. S&S Enterprises Ltd. (WIPO Case No. D2000-0802); Nokia Corporation v. Nokiagirls.com a.k.a IBCC (WIPO Case No. D2000-0102) and Blue Sky Software Corp. v. Digital Sierra Inc. (WIPO Case No. D2000-0165).
The Panel finds the disputed domain name is identical to Complainant’s common law trademark STANSTED AIRPORT.
The test of confusing similarity under the Policy, unlike trademark infringement or unfair competition cases, is confined to a comparison of the disputed domain name and the trademark alone, independent of the other marketing and use factors usually considered: Koninklijke Philips Electronics N.V. v. In Seo Kim (WIPO Case No. D2001-1195); Energy Source Inc. v. Your Energy Source (NAF Case No. FA101000096364); Vivendi Universal v. Mr. Jay David Sallen and GO247.COM, Inc. (WIPO Case No. D2001-1121) and the cases there cited.
The Panel finds the disputed domain name is confusingly similar to the Complainant’s registered trademark BAA STANSTED and Device.
The Complainant has established this element.
The Complainant asserts that the Respondent has not been commonly known, or known at all, by the disputed domain name; he has not acquired any trade mark or service mark rights in it and is not making any legitimate, non-commercial or fair use of it.
These circumstances are sufficient to constitute a prima facie showing by Complainant of absence of rights or legitimate interests in the disputed domain name on the part of the Respondent. The evidentiary burden, therefore, shifts to the Respondent to show by concrete evidence that it does have rights or legitimate interests in that name: Do The Hustle, LLC v. Tropic Web (WIPO Case No. D2000-0624) and the cases there cited.
On October 27, 2001, the Respondent stated that he is "currently in the process of setting up a legitimate site as a customer at Stansted Airport" and on December 4, 2001, he said to the Center " I intend to use the site for a forum of stansted users." The Respondent offers no evidence of his asserted plans and the posting of a "For sale" notice on the website contradicts them.
In his email to the Center of December 4, 2001, the Respondent also said "my defense was that BAA had failed to register the domain name during the Aflias sunrise period for trade mark holders only". The Panel takes this as an assertion of a legitimate interest in the disputed domain name. It cannot be accepted, however, because the Policy applies to all domain names registered in the .info registry after the Sunrise Registration Period (ie. after August 27, 2001): "http://www.wipo.int/amc/en/domains/ gtld/info/sunrise/guide.html".
In the absence of a formal Response, and having rejected as unpersuasive the Respondent’s informal explanations, the Panel finds the Complainant has established this element. The Respondent has no rights or legitimate interest in the disputed domain name.
Bad faith registration and use
The Respondent’s communications of October 27 and December 4, 2001, enable the conclusion comfortably to be drawn that the Respondent was aware of Stansted Airport and of the Complainant’s interest in the name Stansted Airport when he registered the disputed domain name.
In the light of the Respondent’s posting of a "For sale" notice at <http://www.stansted-airport.info> within days of registration of the disputed domain name and in the absence of any explanation from the Respondent as to how this could accord with his asserted plan to establish a users’ forum at the site, the Panel infers that sale to the Complainant at a profit was the Respondent’s primary purpose in registering the disputed domain name. Under paragraph 4(b)(i) of the Policy, this is evidence of both bad faith registration and bad faith use.
The Panel finds that the Respondent has acted in bad faith both in registration and use of the disputed domain name.
The Complainant has established this element.
Pursuant to paragraphs 4(i) of the Policy and 15 of the Rules, the Panel directs that the domain name <stansted-airport.info> be transferred to the Complainant.
Alan L. Limbury
Dated: January 20, 2002